MANIDIPA KAPAS VS. ABHIJIT NEOGY (FM-12-1546-11, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2952-17T1
MANIDIPA KAPAS,
Plaintiff-Appellant,
v.
ABHIJIT NEOGY,
Defendant-Respondent.
Submitted December 10, 2018 – Decided January 2, 2019
Before Judges Fasciale and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-1546-11.
L. Nagananda, LLC, attorneys for appellant
(Lakshminarasimh I. Nagananda, on the briefs).
Abhijit Neogy, respondent pro se.
PER CURIAM
Plaintiff Manidipa Kapas appeals from portions of a February 12, 2017
Family Part order denying, without prejudice, her motion to modify the child
support obligation of her ex-husband, defendant Abhijit Neogy. We affirm.
We set forth the pertinent facts and procedural history from the limited
record provided on appeal. Plaintiff and defendant were married in February
1998. One child, A.N., was born of the marriage in May 2002. Divorced in
March 2012, both parties are attorneys who "earn significant incomes" and enjoy
"a high standard of living."
Because the parties did not include the judgment of divorce in their
appendices, it is unclear whether child support was provided in the judgment.
However, we glean from the trial court's August 6, 2014 order that child support,
in the amount of $275, was established at least as of December 2013. In
particular, the August 6, 2014 order provides, "The [c]ourt reserved the right to
calculate the child support from the [o]rder dated December 11, 2013 1 and
indicated that the obligation would be effective December 6, 2013." Notably,
A.N. was eleven years old in December 2013.
1
Neither party provided the December 11, 2013 order on appeal. However,
plaintiff provided her case information statement dated November 2, 2013,
presumably in support of her post-judgment application for child support.
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2
On November 7, 2014, following defendant's motion for reconsideration,
the court entered an order, reducing defendant's child support obligation to $184
per week, effective retroactively to August 12, 2014. Defendant also was
required to pay his share of A.N.'s health insurance premium, in the amount of
$25.54 per week, and exercise alternate weekend visitation with his son.
On January 12, 2015, the parties executed a consent order, increasing
defendant's child support obligation to $210 per week, effective retroactively to
November 28, 2014 (Consent Order). Defendant's contribution to A.N.'s health
insurance remained $25.54 per week. The Consent Order also provided,
"Neither party shall bring any application before the court for a period of three
years to reduce or increase child support irrespective of their individual
economic circumstances."
Toward the expiration of the three-year period, on October 18, 2017,
plaintiff filed a motion seeking modification of child support pursuant to New
Jersey's Child Support Guidelines (Guidelines), and for defendant's failure to
"exercise any overnight [parenting time] in the past three years." Among other
relief, plaintiff requested $289 per week, which included: defendant's 44% share
of the Guidelines support amount, plus $100 per week because the parties'
combined income exceeded 160% of the maximum joint income guideline; and
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reflected a 14.6% upward adjustment because A.N. was "[fifteen and one-half]
years old" at the time of the October 2017 application. See Child Support
Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to
R. 5:6A, ¶ 17, www.gannlaw.com (2018) (requiring a 14.6% upward adjustment
only where an "initial" child support award is entered after a child's twelfth
birthday). Plaintiff also sought an additional $63 per week for an increase in
her New York State income tax, property tax and work-related commuting
expenses.
Defendant opposed the motion, contending an increase was unwarranted
because plaintiff's income exceeded his. Although defendant acknowledged he
did not exercise overnight parenting time, he estimated that he spent
approximately $300 per month on A.N.
In a detailed order entered February 12, 2018, the trial court denied
plaintiff's motion to modify child support. The court elaborated,
Defendant's current income is virtually unchanged from
the time the parties entered into the Consent Order,
whereas [p]laintiff's has increased. Plaintiff initially
argues that circumstances have changed as the cost of
living has gone up, however, child support collected
through probation is subject to cost of living
adjustments by probation without [c]ourt intervention.
Plaintiff's argument that the maturation of the child
results in more activities and expenses is also
unpersuasive, as paragraph [two] of this [o]rder
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requires [d]efendant to contribute toward those
[educational] expenses. Additionally, the child was
already over the age of [twelve] when the parties
entered into their Consent Order so upward[]
modification on that basis is not warranted. Defendant
not exercising overnight parenting time for the past
three years is immaterial as the Consent Order stated
that [he] did not receive any parenting time credit.
Changes in [plaintiff's] commuting costs and the
federal income tax are not changes in circumstance
warranting recalculation. However, the [c]ourt will add
the increased health insurance cost of $27.64 to the
amount, which [d]efendant has consented to.
....
[Paragraph two]. Plaintiff's request that [d]efendant be
directed to share in the educational expenses of the
child is GRANTED. While items such as school
supplies, and books are covered under the Child
Support Guidelines, private tuition is not. Plaintiff has
submitted documentation as to the child's enrollment at
a class at Middlesex County College, and the NJ Virtual
School. Such expenses shall be divided by the parties
in proportion to their income with [d]efendant being
responsible for 44%.
This appeal followed.
On appeal, plaintiff contends the trial court erred in denying her motion
to increase defendant's child support obligation. She renews the arguments she
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asserted before the trial court 2 contending, among other things, that her financial
circumstances have changed, and the court failed to account for a 14.6% increase
in child support based upon A.N.'s maturation.
We review a trial court's child support decisions for an abuse of discretion.
Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012). "The trial court
has substantial discretion in making a child support award. If consistent with
the law, such an award will not be disturbed unless it is manifestly unreasonable,
arbitrary, or clearly contrary to reason or to other evidence, or the result of whim
or caprice." Ibid. (internal quotation marks omitted) (quoting Foust v. Glaser,
340 N.J. Super. 312, 315-16 (App. Div. 2001)). "[W]e are not bound by '[a] trial
court's interpretation of the law' and do not defer to legal consequences drawn
from established facts." Id. at 116-17 (second alteration in original) (quoting
Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)).
2
Because each of plaintiff's point headings listed in her table of contents cite
to her January 22, 2018 certification, they fail to comply with Rule 2:6-2(a)(1),
mandating citation to "the place in the record where the opinion or ruling in
question is located." Further, citation to the trial record should have followed
each point heading in plaintiff's brief. Nonetheless, we consider the merits of
plaintiff's arguments. See State v. Kyles, 132 N.J. Super. 397, 400 (App. Div.
1975).
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We begin our review by observing we are hampered, to a degree, by the
failure of the parties to provide a complete record on appeal. Rule 2:5-4(a) states
in relevant part: "The record on appeal shall consist of all papers on file in the
court or courts or agencies below, with all entries as to matters made on the
records of such courts . . . ." See also R. 2:6-1(a)(1)(I) (The appendix must
contain parts of the record "essential to the proper consideration of the issues.").
Although plaintiff provided an appendix that included the order under review
and three prior orders, she failed to provide the order dated December 11, 2013,
which is "essential to the proper consideration of the issues" before us. Ibid.Ordinarily, this serious deficiency might prompt us simply to dismiss the
appeal, Pressler & Verniero, Current N.J. Court Rules, comment 2 on Rule 2:5-
3 (2018); see also Rule 2:8-2 (providing that an appellate court may, at any time
and on its own motion, dismiss an appeal), or, alternatively, affirm the order
under appeal. Soc'y Hill Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J.
Super. 163, 177-78 (App. Div. 2002) ("Without the necessary documents . . . we
have no alternative but to affirm."). Nonetheless, we are confident that we have
enough of the record to undertake meaningful appellate review.
In determining a child support award, courts are required to follow the
Guidelines. Pascale v. Pascale, 140 N.J. 583, 593 (1995). Our review of the
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record, here, reflects that the trial court followed the Guidelines, and supports
the court's February 12, 2018 order denying plaintiff's request for a modification
of child support. We affirm substantially for the sound reasons set forth in the
trial court's statement of reasons accompanying the order. We add the following
brief comments.
In pertinent part, the Guidelines provide, "[I]f the initial child support
order is entered when a child is [twelve] years of age or older, that order and all
subsequent orders shall be adjusted upward by 14.6%." Pressler & Verniero,
Appendix IX-A to R. 5:6A at ¶ 17 (emphasis added). Plaintiff claims the initial
child support order was entered on August 6, 2014, when A.N. was more than
twelve years old. However, that order specifically referenced an order dated
December 11, 2013, which awarded $275 in child support retroactive to
December 6, 2013 when A.N. was eleven years old. Accordingly, plaintiff's
argument that the August 6, 2014 order was the initial child support order is
contradicted by the record and, consequently, her contention that the trial court
erred by failing to include the Guidelines-mandated 14.6% upward adjustment
lacks merit. See Accardi v. Accardi, 369 N.J. Super. 75, 87 (App. Div. 2004)
(finding the 14.6% adjustment should be based on "the earliest date from which
support was paid").
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To the extent we have not otherwise addressed plaintiff's arguments, they
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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